On this side of the Atlantic we are all fed up with Brexit. On the other side of the Atlantic we are all fed up with Trump. Both topics suck the oxygen from any room. Each sends otherwise rational humans clambering on to a much earlier branch in the evolutionary tree.
This blog avoids the politics of Brexit. It looks instead at some of the institutional and constitutional lessons. The saga of Brexit is unfortunately still far from over. The outcome is still unpredictable. Nevertheless some of the key institutional lessons are already clear.
The constitutional lessons
There are five main areas where those interested in the institutions of democratic government need to pause, reflect and consider.
In 1975 when the first referendum was held on UK membership in the EU 67% voted in favour. By contrast, in the 2016 referendum 52% voted against.
One important factor in the swing against membership was the agenda control attempted by UK political leaders in the intervening years. In order to avoid internal party divisions, political leaders in both the main parties kept the question of Europe’s evolving political structure as far as possible ‘off the agenda',, despite signing up to a series of Treaties that brought about significant institutional changes in the Union. Resentment built up.
The institutional question is about how to prevent a situation where a fundamental discontinuity arises between the preferences of elected representatives for keeping divisive issues off the agenda and an electorate where a sizeable proportion wants to express an opinion on them.
In democratic theory such disconnects should not arise. ‘Agenda management’ is usually seen as about ways to achieve congruence. In this case the opposite happened. Also, in this case the discontinuity arose on a matter of constitutional importance for the framework of government in the UK. The oversight of constitutional development is too important to be entrusted entirely to the hands of self-serving political leaders anxious to avoid controversy.
The interplay between representative government & direct democracy
Referendums belong with ideas about the virtues of direct or participatory democracy. Direct democratic expression does not sit easily alongside ideas about representative democracy. Their juxtaposition is particularly problematic in the case of the UK because, in the UK, the conventions of representative democracy are expressed in the extreme form of parliamentary ‘sovereignty’. In this doctrine the representation principle, expressed through parliament, is supreme.
From the time of its calling this led to confusion about the exact status of the referendum. It was said to be advisory (thus giving parliament the decisive word) but impossible to ignore (thus giving back to the voters the decisive say in the matter). In other words, a typical British muddle and fudge. The muddle continues. Some MPs refer to the referendum as an 'instruction'. Others want to reverse it.
It is likely that democratic societies will increasingly resort to the conventions of direct or participatory democracy. Otherwise the gulf between the directness we experience in our ordinary life in a world of immediate, personalised, internet transactions and the unresponsiveness of politics simply becomes too huge to be acceptable.
In this case, muddle and fudge is no longer acceptable either. The UK doctrine of parliamentary sovereignty will need to bend. Even in countries where the conventions of representative democracy sit more easily alongside the conventions of direct democracy, the relationship will need to be overseen – possibly by bodies independent of elected representatives.
If, as seems likely, referendums and popular initiatives are going to play a larger role in democracies in future then it is important to address their main weakness – the scope for manipulation.
The key questions in this context concern who can call a referendum, its timing, the formulation of the question to be asked and the majority required for passage and the provisions for implementation.
In the context of the Brexit referendum there has been disquiet about each aspect including the partisan circumstances of the calling; the open–ended nature of the question; the view that the most important questions require a decisive vote of more than a simple majority and the lack of provision for implementation.
‘Hold out’ games
Game theorists will no doubt take great pleasure in modelling the Brexit negotiations for students in the years to come. From such a perspective a crucial feature of the negotiations has been the presence of what is called a ‘hold out problem’ where individual participants on each side are not prepared to agree to, or participate in, a common position, or in a decisive majority, unless their own particular interest is satisfied.
This ‘hold out’ behaviour happened to crystalize around the Irish border. However, potentially there have been several other participants on each side of the negotiation who have presented a risk of ‘defection’ where they might decide that ‘no deal’ was better than the negotiated deal.
Leaving aside the Irish border, the principal tactic in the negotiation has been to rely on subdividing policy areas and on declarations of principle that kick problems down the road.
The underlying issue is about how best to establish a negotiating framework when there is a high risk of hold-out behaviour and defection. One possibility, sometimes discussed in games theory, is about the role of an additional player – a third party that can provide direction and steering.
Exit provisions in political unions and treaties
In democratic theory, political unions are voluntary. Applicants join because they see advantages from membership that outweigh the disadvantages. This leaves open the question of what happens if, down the road, the perceived balance of advantage swings against continued membership.
In this case many constitutionalists would argue in favour of exit provisions in order to preserve the principle that membership in the union remains voluntary. As long ago as the 17thcentury Spinoza favoured the principle of voluntary exit.
What theorists have however been rather quiet about are the terms and conditions of exit. If pre-set conditions are made easy then exit may be encouraged. If conditions are pre-set to be punitive then agreement on future relationships will be off to a bad start.
The UK case shows that exit conditions can be extremely complicated to negotiate. Moreover, in the circumstances of exit, ‘goodwill’ has been in short supply.
There are possibly two avenues for development. The first is that there may be space for a formal provision that allows for remedial action; in other words a negotiation about addressing the reasons why the balance has swung against continued membership. This will not always work.
Another avenue is to address the institutional arrangements for negotiating separation. In situations where ‘good will‘ is in short supply and even ‘good faith’ may be doubted, there is a case for a 'neutral' setting. Possibly the UN Convention on the Law of Treaties can be adapted to provide a setting.
There are three general conclusions. First, representative democracy as practiced in the UK has functioned extremely poorly. A self-satisfied Westminster model has been tested and found wanting. Agenda control backfired, a referendum was poorly constructed and its status was confused.
Secondly exit provisions in the EU have been found lacking in content and deficient in structure.
Thirdly, we need to think further about the oversight of developments of constitutional importance.
It is to be hoped that the word ‘Brexit’ will soon pass from our conversations and that the world will move on. However, it is important to draw the institutional lessons from the experience.